Debogotification of English libel law?

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The England and Wales Court of Appeals delivered its judgment this morning in Simon Singh's appeal of last year's libel verdict against him.  This all began on April 19, 2008, when Singh wrote an opinion piece in the Guardian containing these sentences:

The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

The BCA sued for libel, and won an initial victory in May of 2009, when Sir David Eady, the presiding judge in the English High Court, decided that Singh's piece involved assertions of fact rather than opinion, and that the word bogus in effect meant "fraudulent" and not just "ineffective". This decision meant that in order to defend himself successfully, Singh would have to prove that the BCA was deliberately and knowingly dishonest in promoting treatments that it knew did not work.

Although the Guardian withdrew the article, Singh chose to appeal Eady's judgment, and attracted considerable support for his goal of keeping libel laws out of scientific debate.

The Court of Appeals had this to say about the question of fact vs. opinion:

One error which in Ms Page's submission affects Eady J's decision on meaning is that in §14, quoted above, he treats "verifiable fact" as antithetical to comment, so that any assertion which ranks as the former cannot qualify as the latter. This, it is submitted, is a false dichotomy. It led the judge to postulate the resultant issue as "whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them". This, he held, was "a matter of verifiable fact".

It seems to us that there is force in Ms Page's critique – not necessarily because fact and comment are not readily divisible (that is a philosophical question which we do not have to decide), but because the subject-matter of Dr Singh's article was an area of epidemiology in which the relationship of primary fact to secondary fact, and of both to permissible inference, is heavily and legitimately contested. The issue posed by the judge is in reality two distinct issues: first, was there any evidence to support the material claims? and secondly, if there was not, did the BCA's personnel know this? If, as Dr Singh has contended throughout, the first issue is one of opinion and not of fact, the second issue ceases to matter.

In our judgment Eady J, notwithstanding his very great experience, has erred both in conflating these two elements of the claim and, more particularly, in treating the first of them as an issue of verifiable fact.

With respect to the question of deliberate dishonesty vs. careless disregard for evidentiary status, the court wrote:

Once the allegation that there is "not a jot of evidence" to support the claims is properly characterised as a value judgment, the word "happily", even if synonymous with "knowingly", loses its sting. But we respectfully doubt whether the judge was justified in any event in attributing to the word any significance beyond, say, "blithely". The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy – a meaning which takes one back to the assertion that there was not a jot of evidence for the BCA's claims.

Milton is quoted, and not in a good way for the BCA:

… the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

That is a pass to which we ought not to come again.

The court's conclusions could not, as far as I can understand them, be more favorable to Singh.  And the opinion further suggests that he may be succeeding in his quest to reform English libel law more broadly:

It may be said that the agreed pair of questions which the judge was asked to answer … was based on a premise, inherent in our libel law, that a comment is as capable as an assertion of fact of being defamatory, and that what differ are the available defences; so that the first question has to be whether the words are defamatory even if they amount to no more than comment. This case suggests that this may not always be the best approach, because the answer to the first question may stifle the answer to the second.

Towards the end of the judgment, the court cites "[r]ecent legislation in a number of common law jurisdictions – New Zealand, Australia, and the Republic of Ireland", and quotes from the opinion of an American judge:

We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):

"[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us."

I suspect that this sort of attention to legislation and legal opinion in other countries is not a normal part of English appeals-court judgments, and represents an implicit (and well-deserved) rebuke to the current state of the law of defamation in England and Wales.

A response from the BCA is here.

[Update -- Commentary at libelreform.org; at senseaboutscience.org; by Jack of Kent; at the Guardian; at BBC News.]

[Hat tip to Ian Preston.]

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13 Comments »

  1. Mark Gould said,

    April 1, 2010 @ 8:01 am

    A minor correction. Strictly speaking, the BCA did not win the original libel action. That has yet to be heard (and now, unless there is a successful appeal, will not be heard). The case considered by Eady J and by the Court of Appeal was a preliminary one — considering (a) whether the words could be defamatory (not whether they were in this case defamatory) and (b) whether the words complained of were fact or comment. Until those matters were resolved in the BCA's favour, the case could not proceed to a full hearing (including assessment of damages), so it is inaccurate to say that "the BCA sued for libel — and won."

    [(myl) Sorry -- I've corrected the body of the post to reflect the true state of play.

    I believe it's fair to say, though, that if Eady's judgment had been allowed to stand, Singh was bound to lose the case, failing the unlikely discovery of some internal BCA communications confessing an intent to lie about the efficacy of the particular list of treatments he had discussed.]

  2. Mark Gould said,

    April 1, 2010 @ 8:49 am

    Thanks Mark. You are of course absolutely right to note that this was not a minor side-issue.

  3. ...just don't call me late for dinner! said,

    April 1, 2010 @ 10:25 am

    I never thought I'd live to see a quote from Judge Easterbrook cited in an English libel case. Hopefully this is a sign of a coming sea change in that nation's defamation laws, which are frankly unconscionable.

    As a side note, as an American lawyer I'm always struck my how circuitous and deferential English court opinions are: they use phrases like "It seems to us that there is force in Ms Page's critique" instead of "Page is right" or "Page's argument is persuasive." Where a British court says "This, it is submitted, is a false dichotomy," an American judge would almost certainly say "this is a false dichotomy." Simply comparing Judge Easterbrook's quoted language against the rest of the opinion gives a good feel for how much more declarative and plain American legal writing tends to be.

  4. John Cowan said,

    April 1, 2010 @ 10:35 am

    The verb is bogotify, so your headline should speak of debogotification.

    [(myl) OK, OK -- my instinct is otherwise, but I see that you have norma loquendi on your side...]

  5. John Cowan said,

    April 1, 2010 @ 11:19 am

    Just Dinner: That circuitous deferentiality is actually a form of very severe criticism: the more circuitous, the more severe. When an elderly and well-educated Brit tells you that, in his opinion, you may just possibly have the wrong idea here, he's telling you to go back to square one and try again.

  6. Ginger Yellow said,

    April 1, 2010 @ 11:58 am

    "I suspect that this sort of attention to legislation and legal opinion in other countries is not a normal part of English appeals-court judgments, and represents an implicit (and well-deserved) rebuke to the current state of the law of defamation in England and Wales."

    Not really – that's kind of how common law works. Several developments in English libel law over the last decade or so have stemmed from foreign judgements. For instance, the jurisdictional claims of English libel law over material published on the internet stems originally from Australian case history. And obviously European law comes up quite often in the appeals courts, although that's something of a special case.

    As far as I know, however, it's pretty rare to reference US rulings, at least in defamation cases, as the statutes are so different.

    Bear in mind in all this that I am definitely not a lawyer. I have followed English libel case law pretty closely, however.

  7. Ginger Yellow said,

    April 1, 2010 @ 12:01 pm

    I should add that other Anglo-centric common law jurisdictions like Northern Ireland and indeed Australia have also on occasion imported recent UK case law into their defamation law.

  8. Patrick Dennis said,

    April 1, 2010 @ 2:15 pm

    Interesting that the Guardian still will not print the offending quote:

    "He [Singh] suggested there was a lack of evidence for the claims some chiropractors make on treating certain childhood conditions including colic and asthma.

    The BCA alleged that Singh had in effect accused its leaders of knowingly supporting bogus treatments."

  9. cm said,

    April 1, 2010 @ 8:22 pm

    late for dinner:Where a British court says "This, it is submitted, is a false dichotomy," an American judge would almost certainly say "this is a false dichotomy."

    Hardly. The court here is stating Ms Page's argument, not its own finding. A German judge would almost certainly use the subjunctive.

    Ginger Yellow:Anglo-centric common law jurisdictions like Northern Ireland … have also on occasion imported recent UK case law into their defamation law

    English case-law perhaps: Northern Ireland being by definition part of the UK.

  10. Peter Taylor said,

    April 2, 2010 @ 7:41 am

    It might be nice to have a brief mention of the fact that Ms Page is a lawyer acting for Singh before that first quote from the judgment.

  11. Col. P. Edward Randypants said,

    April 2, 2010 @ 5:44 pm

    Excellent to see Mr. Singh won't be held liable for calling a spade a spade. In opining that Chiropractic 'medicine' is bogus, his statement is based on accepted fact, much more so than the opposite would be true. He is merely saying that trees are made of wood – if someone should disagree, it's their problem to come up with proof that would show otherwise.

    ps. Your use of red text is bogus. Hard on the eyes.

  12. Ginger Yellow said,

    April 4, 2010 @ 11:32 am

    cm: Australia as well – for instance the Victoria Supreme Court judgement in Gutnick vs Dow Jones cites the English case of Godfrey vs Demon Internet.

  13. John Cowan said,

    April 8, 2010 @ 5:28 pm

    A case in a given common-law jurisdiction can't be a controlling authority in another jurisdiction (and the same is true of Maine and Iowa, so it's not a matter of being in different nation-states), but it can be, and often is, highly persuasive. The relatively modern common-law treatment of liability for extra-hazardous activities was spread by the persuasive argumentation of the judges in the English case of Rylands v. Fletcher.

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